TERMS AND CONDITIONS

1. Definitions

1.1     In these terms and conditions, unless the context otherwise requires:

“Agreement” means the contractual relationship between the parties constituted by this agreement any other documentation agreed in writing and signed by duly authorised officers of both parties.

“Business Day” means a day other than a Saturday, Sunday or public holiday in the State of Victoria.

“Charges” means the charges specified in an Order Form which the Customer must pay to DB Results for carrying out the Services described in that Order Form.

“Commencement Date” is the date that both parties have signed the Order Form or any alternative commencement date identified on the Order Form.

“Customer” means the Customer identified in the Order Form.

“Customer Inputs” means the items, resources, and other inputs described in the Order Form to be provided, sourced or made available by the Customer.

“Customer Representative” means the person specified in the relevant Order Form or such other persons as the Customer Representative may nominate from time to time.

“DB Results” means DB Results Pty Ltd.

“DB Results Representative” means the person specified in the relevant Order Form or such other persons as the DB Results Representative may nominate from time to time.

“Geographical Limit” means:

  1. Australia; or, if a court finds that to be unenforceable then
  2. Victoria or any other State(s) or territory where the work is being performed; or, if a court finds that to be unenforceable then
  3. Melbourne or any other place where the work is being performed.

“GST” means goods and services tax, value added tax or any other like tax.

“Insolvency Event” means a liquidator, administrator or receiver is appointed to the party, if an order is made that it be wound up, if it is unable to pay its debts as and when due or the party is insolvent under administration as defined in the Corporations Act 2001.

“Intellectual Property Rights” means all intellectual property rights including, but not limited to, all current and future registered and unregistered rights in respect of copyright, designs, trade marks, know-how, confidential information, patents, inventions and discoveries both in Australia and throughout the world.

“Parties” means DB Results and the Customer.

“Personnel” means any employees, contractors or agents of a party.

“Restraint Period” means:

  1. 12 months; or, if a court finds that to be unenforceable then
  2. 9 months; or, if a court finds that to be unenforceable then
  3. 6 months; or, if a court finds that to be unenforceable then
  4. 3 months.

“Services” means the services described in the Order Form.

“Order Form” means the document which describes the products or services to be provided by DB Results and which expressly incorporates these terms and conditions.

1.2     In this Agreement:

a) words importing the singular include the plural and vice versa;

b) the word “person” includes a company, partnership, joint venture, association, corporation, unincorporated association or Government agency;

c) a reference to a clause, Order Form or attachment is a reference to a clause of, or Order Form or attachment to, this Agreement and a reference to this Agreement includes all Order Forms and attachments to this Agreement;

d) a reference to Applicable Law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by law, judgement, rule of common law, civil law or equity, or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;

e) a reference to a document includes all amendments or supplements to that document, or replacement or novation of it;

f) a reference to a person includes the person’s executors, administrators, successors, substitutes (including persons taking by novation), and permitted assigns;

g) a reference to a “party” is a reference to either the Customer or DB Results and a reference to the “parties” means both of them;

h) a reference to a third person or a third party is a reference to a person who is not a party to this Agreement;

i) Australian dollars, dollars, AUD$, AUD or $ is a reference to the lawful currency of Australia;

j) the words “include”, “includes”, “including”, “for example” or “such as” are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;

k) headings are included for convenience and do not affect the interpretation of this Agreement; and

l) this Agreement may not be construed adversely to a party just because that party prepared or proposed amendments to it.

2. Order Forms

1.1 DB Results will carry out the Services specified in the Order Form for the Customer in accordance with these terms and conditions and the Customer must pay the Charges to DB Results in the manner specified in the relevant Order Form.

1.2 Order Forms will set out:

a) the specific services to be performed for the Customer;

b) the period for which the Customer requires the provision of those services;

c) the locations at which the services are to be provided;

d) the standards to which the Customer requires the services to be provided, if applicable; and

e) such other matters as the parties consider relevant.

1.3 The Customer must provide the Customer Inputs in the manner set out in the Order Form. Without limiting this clause, the Customer must provide all access to its premises, systems and personnel and such assistance as is reasonably required by DB Results to allow DB Results to provide the products and Services as required by this Agreement.

3. Performance of Services

3.1. DB Results must:

a) perform the Services with skill, care and diligence in accordance with industry standards and to a quality consistent with work of a similar nature to the Services;

b) comply with any reasonable administrative and practical procedures and instructions as provided by the Customer from time to time;

c) act in the Customer’s best interests and do nothing which would harm the Customer’s reputation; and

d) comply with the Customer’s reasonable directions concerning the performance of the Services.

4. Personnel

4.1. DB Results will provide the Personnel identified in the Order Form, if any, to perform the Services at the Customer’s premises or as specified by the Customer and agreed by DB Results from time to time.

4.2. The Customer has the right to request a change of the Personnel if the level of performance of such person does not meet the Customer’s reasonable standards and DB Results must comply with such a request where reasonably practicable.

4.3. DB Results will notify the Customer if any Personnel will be replaced or removed and will notify the Customer of the identity, experience and qualifications of any replacement Personnel.

4.4. DB Results warrants that Personnel have all the necessary experience, qualifications and resources to provide the Services in accordance with the requirements of the Order Form.

4.5. DB Results may use subcontractors for the provision of Services. In such cases, DB Results remains responsible for all obligations, services and functions performed by any subcontractors to the same extent as if those obligations, services and functions were performed by DB Results.

5. Invoicing and payment

5.1. The Customer must pay the Charges to DB Results upon being issued an invoice by DB Results on a fortnightly basis. The Customer must pay the invoice within 14 days from the date of DB Results’ invoice.

5.2. Each payment is non-refundable. The Customer must pay and indemnify DB Results against all taxes (including GST) and duties payable in respect of the Order Forms and the Charges (excluding any income tax payable by DB Results). Any overdue amounts are subject to interest which will be charged at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower, calculated on a daily basis.

5.3. The Customer must (on production of receipts) pay all reasonable expenses which DB Results incurs in performing the Services for which prior approval has been given, including travel and accommodation costs. DB Results will issue an invoice for expenses fortnightly and the Customer will pay the pre-approved expenses within 14 days from the date of DB Results’ invoice. Any special conditions regarding expenses will be detailed in the relevant Order Form.

5.4. The Customer must pay DB Results the Charges, based on any service rates for Personnel set out in the Order Form, for actual time worked by the Personnel in performing the Services where the time worked is approved by the Customer.

6. GST and other taxes

6.1. The Charges are exclusive of any taxes, duties, fees and similar imposts which are payable incidental to the provision of products and services. If GST (or any similar tax) is applicable to any supply, the Customer must pay GST in addition to the sum charged, and the parties will otherwise comply with the GST law.

6.2. Any future increases by the State, Territory or Federal Government of any applicable tax or any other statutory cost or expense will be reflected in the Charges from the effective date of the increase.

7. Intellectual Property

7.1. Any Intellectual Property Rights which are the property of either party and which are held by that party prior to entry into the Order Form or developed independently of the Order Form, including modifications and enhancements to that material, whether arising during the provision of services or otherwise (Background IP) will remain the sole property of that party.

7.2. Any Intellectual Property Rights created through provision of the Services under the Order Form (Developed IP) vest in DB Results. DB Results grants the Customer a non-exclusive licence to use Developed IP for the Customer’s internal business purposes for which the Services were provided.

7.3. Each party indemnifies and shall at all times keep the other party indemnified against any action, claim, suit or demand, including a claim, suit or demand for or liability to pay compensation or damages and costs or expenses arising out of or in respect of any breach of any third party’s Intellectual Property Rights relating to material provided or made available by that party to the other party.

8. Confidentiality, security and work place policies

8.1. For the purposes of this Agreement, “Confidential Information” means in respect of a party (Recipient) the terms of the Order Form, the terms of this Agreement and all information of the other party relating to its business, products or services, personnel, clients, operations, strategies, marketing or finances, including all information marked confidential or which the Recipient knows or should reasonably know is confidential.

8.2. Each party agrees to keep the other party’s Confidential Information confidential and to use it only for the purpose of providing or receiving the Services.

8.3. The Recipient must treat the Confidential Information as confidential and may only disclose it:

a) if the Recipient already knew the information before disclosure;

b) if the Recipient is required by law or by the requirements of any stock exchange rules which apply to the Recipient;

c) to its employees, officers, professional advisers, financiers, insurers, auditors or accountants provided any such disclosure is on a confidential basis;

d) with the consent of the other party, which consent is not to be unreasonably withheld;

e) to its subcontractors as necessary to provide the Services under the Order Form; or

f) where the Confidential Information is in the public domain, other than as a result of a breach of this clause 8 by the Recipient.

8.4. DB Results may retain such records of Confidential Information as it is required to maintain by law, including to satisfy any statutory or common law obligations in respect of corporate governance or record keeping. The obligations of confidentiality continue to apply to all such information and DB Results must destroy such records at such time as the records are no longer required to be maintained by law.

8.5. When on the Customer’s premises, DB Results will comply with those work place policies and security regulations which are notified by the Customer in writing.

9. Liability

9.1. To the fullest extent permitted by law, neither party will be liable for any special, indirect, incidental or consequential loss or damages suffered or incurred arising out of or in connection with this Agreement, however caused, including without limitation, any damages resulting from loss of use, loss of data, loss of profits or loss of business, whether or not the party has been advised of the possibility of such damages.

9.2. To the fullest extent permitted by law, DB Results’ liability to the Customer for any direct loss suffered by the Customer arising in connection with any Order Form is limited to the Charges paid to DB Results by the Customer under that Order Form in the 12 months prior to the loss occurring (less any claims paid in that period) except in relation to the indemnity provisions under clause 7.3 of this Agreement.

9.3. The Customer acknowledges that it has not relied on any representations made by DB Results which are not set out in these terms and conditions.

9.4. Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Australian Consumer Law, Order Form 2 of the Competition and Consumer Law Act 2010 (Cth) or any other applicable law that cannot be excluded, restricted or modified by agreement.

9.5. DB Results does not warrant that any products or Services will be error free. The products and Services will be provided on an “as is” basis and, to the extent permitted by law, DB Results disclaims any implied warranties including, without limitation, any warranties of merchantability or fitness for a particular use or purpose.

10. Insurance

10.1. DB Results will maintain and keep current during the Term:

a) workers compensation insurance in accordance with applicable law or awards;

b) public liability insurance for an amount not less than $5 million; and

c) professional indemnity insurance for an amount not less than $1 million per occurrence.

10.2. The Customer may request at reasonable times and DB Results must provide evidence of the currency of all insurance policies required under this Agreement.

11. Termination

11.1. Either party may terminate this Agreement immediately:

a) if the other party is in material breach and does not, within 30 days of written notice, remedy the breach;

b) if the other party has committed a material breach which in the reasonable opinion of the other party cannot be remedied; or

c) if an Insolvency Event occurs affecting the other party.

11.2. On any termination, each party must return to the other party or destroy all Confidential Information of the other party which is in its possession.

11.3. The expiry or termination of this Agreement does not affect any claim that a party may have against the other party, either party’s rights in respect of any breach of this Agreement occurring before termination or expiry or the obligations of the parties to make any payments or perform any act under this Agreement which was due before termination or expiry. The provisions of this Agreement which are capable of having effect after termination or expiry, including, without limitation, clauses 7, 8, 9, 12, 13 and 18, will survive any termination or expiry.

12. Non-solicitation

12.1. For the duration of this Agreement including any extensions to this Agreement and following the termination or expiry of this Agreement for any reason, each party warrants and covenants that it will not, and will ensure that each member of its Personnel will not, directly or indirectly within the Geographical Limit for the Restraint Period solicit, canvass, approach, induce, encourage or assist an employee, contractor, supplier or customer of the other party to cease his or her employment or engagement with that party.

12.2. In entering into this Agreement, each party acknowledges that the above ongoing obligations are fair and reasonable and are necessary to protect the legitimate business interests of the other party, that damages are not an adequate remedy to protect a party’s interests for breach of this clause 12 and that a party is entitled to seek and obtain injunctive relief, or any other remedy, in any Court of competent jurisdiction.

12.3. In the event that a party breaches the covenant under clause 12.1 in respect of an employee or contractor, that party agrees to pay to the other party as liquidated damages, a sum equal to 75% of the employee or contractor’s total wages for a 12 month period. Both parties agree that such liquidated damages are a genuine pre-estimate of the foreseeable loss that would be incurred by the other party due to the breach.

12.4. Each obligation specified in clause 12.1 above has effect as if they consist of separate provisions, each resulting from combining each geographical area in the definition of Geographical Limit with the relevant period of time specified in the definition of Restraint Period. If any of those separate provisions is invalid or otherwise unenforceable for any reason, the invalidity or unenforceability must not affect the validity or enforceability of any other separate provisions or other combination of those separate provisions in clause 12.1.

12.5. If the restrictions in this clause 12 are void as unreasonable for the protection of a party’s interests and would be valid if part of the wording was deleted or the period or area was reduced, the restrictions will apply with the modifications necessary to make them effective.

13. Dispute resolution

13.1. Neither party may commence arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless it has first complied with this clause 13.

13.2. A party claiming that a dispute has arisen must notify the other party within a reasonable time period.

13.3. Within 10 Business Days after a notice is given under clause 13.2, senior management from each party must use their best efforts to resolve the dispute in good faith.

13.4. If a dispute is not resolved within that time, the parties may agree that the dispute will be referred for mediation in accordance with the Australian Disputes Centre (ADC) Mediation Guidelines, and to a mediator agreed by the parties, or if the parties do not agree on a mediator, a mediator nominated by the then current chief executive officer of ADC or the CEO’s nominee.

13.5. All costs associated with the use of a mediator will be shared by the parties equally.

13.6. In event of a material breach causing termination, dispute resolution processes as stipulated under clause 13 do not need to be followed.

14. Conflict of interest

14.1. Both parties must exercise reasonable care and diligence to prevent any actions or conditions which could result in a conflict with the other party’s best interests.

14.2. This clause 14 applies to all activities of a party’s employees, officers, agents, representatives, contractors and/or subcontractors associated with this Agreement.

14.3. Each party’s obligations under this clause 14 include establishing precautions to prevent their own employees, officers, agents, representatives, contractors and/or subcontractors from making, receiving, providing or offering gifts, payments, loans, substantial entertainment or other considerations for the purpose of influencing individuals to act contrary to the other party’s best interests.

14.4. A party must immediately notify the other party in writing of any and all suspected or actual violations of this clause 14 upon becoming aware of such suspected or actual violations.

15. Notices

15.1. The Customer Representative and DB Results Representative are those specified in the Order Form or such replacement person as either party notifies to the other party from time to time.

15.2. All communications to a party under the Order Form will be addressed to its Representative.

15.3. All communications will be made by hand delivery, pre-paid mail, facsimile or email to the relevant address specified in the relevant Order Form (as the case may be) or such other address details for a party as it may notify to the other party from time to time.

15.4. A party will be taken to have received a notice:

a) by pre-paid mail on physical receipt of the relevant letter;

b) by facsimile upon completion of the transmission to the correct facsimile number and upon receipt of a confirmation that the fax has been sent;

c) by email upon the email entering the electronic communications systems of the recipient.

15.5. Where a notice would be taken to be received outside the hours of 9.00am to 5.00pmon a Business Day it will be taken to be received at 9.00am on the next Business Day.

15.6. In the case of email, a party receiving an email must send a reply email acknowledging receipt within 2 Business Days of receiving the email. If a party sending an email does not receive such acknowledgement, it must contact the other party to verify whether the email has been received. A party sending a notice by email must ensure it maintains an electronic or printed copy of the email.

16. Force majeure

16.1. A party is not liable for any delay or failure to perform an obligation under the Order Form, other than a payment obligation, if the party is unable to perform that obligation due to the occurrence of an event beyond its reasonable control and which that party would not, by the exercise of all due diligence, have been able to avoid or overcome, including, without limitation, strikes, lock-outs, acts of God, war, riot, terrorism, civil commotion, sabotage, malicious acts of damage, fire, embargo or failure of the public electricity supply, water or other utility shortage (“Force Majeure Event”). Such relief from liability only applies during the period that the party is prevented by the Force Majeure Event from performing its obligations and could not have overcome the effects of the Force Majeure Event by the exercise of all due diligence.

16.2. If a Force Majeure Event prevents an affected Party from providing the Services under the Order Form in accordance with the requirements of the Order Form, or otherwise performing an obligation under the Order Form, for more than 8 weeks, the other party may by written notice of 14 days to the affected Party terminate the Order Form.

17. Marketing

17.1. Without limiting the confidentiality provisions of this Agreement, the parties agree that each may reasonably publicise the non-confidential subject matter of this Agreement for ordinary marketing purposes and that each party may use the trade marks, service marks, logo and trade names of the other party for that purpose in accordance with the other party’s standard trade mark guidelines and policy.

17.2. DB Results may, after notifying the Customer, use the Customer as a reference and refer to any project or work performed for the Customer in published case studies or other marketing material.

18. General

18.1. The failure of either party to insist upon a strict performance of any term of this Agreement will not be deemed a waiver of any subsequent breach or default of the terms of this Agreement.

18.2. Each provision of this Agreement is severable from the others and no severance of a provision will affect any other provision.

18.3. In the event of any inconsistency between this Master Services Agreement or an Order Form, the highest listed in priority will prevail over all other terms to the extent permitted by relevant law:

a) any special conditions in an Order Form;

b) the terms and conditions of this Agreement; and

c) the remaining terms of the Order Form.

18.4. This Agreement may only be varied, supplemented, replaced or amended by agreement in writing executed by duly authorised officers of both parties.

18.5. Each party must, at its own expense, do everything reasonably necessary to give full effect to this Agreement. Each party must bear its own costs in negotiating, preparing and signing this Agreement.

19. Relationship of parties

19.1. Nothing in this Agreement may be construed as creating a relationship of partnership, joint venture, employee, servant, agency or a relationship of trustee and beneficiary between the parties by reason of this Agreement.

19.2. Neither party has the authority to bind the other party or make commitments of any kind on their behalf except where authorised in writing to do so by a duly authorised representative of the other party.

19.3. During this Agreement, the parties must act towards each other with the utmost good faith and any outstanding items, action or decisions needed from the Customer must be provided in a timely manner.

20. Counterparts

20.1. This Agreement may be executed in any number of counterparts, each signed by one or more parties. Each counterpart when so executed is deemed to be an original and all such counterparts taken together constitute one document.

20.2. A party that has executed a counterpart of this Agreement may exchange that counterpart with another party electronically by faxing it or sending it via electronic mail to the other party and, if that other party requests it, promptly delivering that executed counterpart by hand or post to the other party. However, the validity of this agreement is not affected if the party who has faxed or sent via electronic mail the counterpart delays in delivering or does not deliver it by hand or by post.

21. Entire understanding

21.1. This Agreement embodies the entire understanding and agreement between the parties as to the subject matter of this Agreement.

21.2. All previous negotiations, understandings, representations, warranties, memoranda or commitments in relation to, or in any way affecting, the subject matter of this Agreement are merged in and superseded by this document and will be of no force or effect whatever and neither party will be liable to the other party in respect of those matters.

22. Governing law and jurisdiction

22.1. This Agreement is governed by and will be construed in accordance with the laws of the State of Victoria.

22.2. The parties irrevocably and unconditionally agree to submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia in respect of all matters arising out of or relating to this Agreement, its performance or subject matter.